Jeffrey Leon Arundell v Baulkham Hills Shire Council [2006] NSWLEC 235

Land and Environment Court of New South Wales

CITATION : Jeffrey Leon Arundell v Baulkham Hills Shire Council [2006] NSWLEC 235

APPLICANT: PARTIES : Jeffrey Leon Arundell RESPONDENT: Baulkham Hills Shire Council

FILE NUMBER(S) : 10074 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Building platform – Lot 1 - site stability - insufficient usable private open space - unacceptable in impact on existing amenity of the neighbourhood - drainage and· objections.

Baulkham Hills Local Environmental Plan 2005, (BHLEP) LEGISLATION CITED: Development Control Plan No.3 –Residential, (DCP3) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 05/05/2006

EX TEMPORE JUDGMENT DATE : 05/05/2006

APPLICANT: Mr J L Arundell, LIP SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr M Pearce, solicitor, corporate lawyer SOLICITORS: N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

5 May 2006

10074 of 2006 - Jeffrey Leon Arundell v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a development application to subdivide Lot 3414, DP 793540, being No 11 Tanglewood Place, West Pennant Hills, into two allotments. 2 The on-site hearing was held on the land with the parties present and nearby residents gave evidence. 3 I have concluded that the application should succeed and that the principal contested issue of the steepness of the land is not a reason for refusal of the application. The land 4 The land is situated on the northwestern side of the head of Tanglewood Place and is of irregular shape with an area of 5,728m2. It has a 8.5m frontage with vehicular access to Tanglewood Place. The southwest boundary is 170.47m; the northeast boundary is 130m; the northeast boundary is 51.6m; the northwest boundary is 37.99m and the southeast boundary is the curved frontage of 8.5m to Tanglewood Place. 5 Water, sewer, power and telecommunications service the land. The land is encumbered by a restricted development area covering the rear half and two fire-restricted zones over an area to the rear of the existing dwelling. 6 Erected on the land is the dwelling that is setback about 45m from the front boundary. The area between the front boundary and the existing dwelling has an average slope of 32.5% (1 in 3.1) falling across the site with scattered trees over this area. The remainder of the land is heavily treed with an average slope of 10% to the watercourse along the rear boundary. 7 The land is identified on the Bush Fire Hazard Maps as being within the fire hazard zone. 8 The character of the surrounding area consists of residential housing with a significant corridor of vegetation running diagonally across the rear of the site. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 9 Under the provisions of the BHLEP the land is zoned Residential 2(b) and the proposal is permissible with consent. 10 The objective of the zone is to identify residential areas of a predominantly single dwelling low-density character and to ensure that new housing respects and complements the heritage and environmental character of the surrounding low-density development. Development Control Plan No.3 –Residential, (DCP3) 11 DCP3 is relevant. Clause 4.12.3 of DCP3 specifies the building platform location. 12 Other statutory and non-statutory planning controls include: · Environmental Planning & Assessment Act 1979. · Rural Fires Act 1997. · NSW Threatened Species Conservation Act 1995. · Federal Environmental Protection & Biodiversity Conservation Act 1999. The proposal and its history 13 Development application No 2963/04/ZB was lodged with the respondent council on 6 May 2004 to subdivide the land into two allotments. 14 Proposed Lot 1 would be an irregular shaped allotment and having an area of 839.6m2 with a 5.95m frontage to Tanglewood Place as shown in the plans in Exhibit J. Proposed Lot 2 would be an irregular shaped allotment containing the existing residence and having an area of 4,887m2 with vehicular access along a right of carriageway to Tanglewood Place. Notification 15 The application was notified to nearby owners and occupants on 1 June 2004 and this was extended to 10 June 2006, and the council received one objection. 16 There was a referral to NSW Rural Fire Services on 22 September 2004 and the NSW Rural Fire Services General Terms of Approval received on 5 November 2004. This was supplemented by the RFS on 22 September 2004. The council's decision 17 The Development Application Unit (DAU) on 9 December 2004, resolved that the application be deferred for a site inspection. That site inspection by council officers was held on 20 January 2005. 18 The DAU on 17 February 2005 resolved that the application be refused and by notice dated 23 February 2005 the council formally refused the application. The hearing 19 The appeal was filed on 9 February 2005. 20 At the hearing the court heard evidence on behalf of the respondent council from Mr B Roberts, Senior Subdivision Engineer, Baulkham Hills Shire Council who also prepared the position statement. Local residents also gave evidence on behalf of the council. 21 On behalf of the applicant evidence was given by Mr S Cheng, surveyor and resident of No 15 Tanglewood Place, West Pennant Hills. The issues 22 On 2 March 2000 the council filed a statement of issues. 1. The proposed development does not satisfy the objectives of DCP No.3 - Residential with respect to building platforms. Particulars (i) clause 4.12.3 -Performance Criteria (a) of DCP No.3. (ii) the proposed building platform is located on a steep slope with a gradient of between 1 in 4 (25%) and 1 in 2 (50%). 2. The proposed development is likely to result in a decrease in site stability. Particulars (i) a number of trees in and around the building platform may be removed resulting in a decrease in soil stability. (ii) a 3.5 metre fall across the building platform will require extensive excavation and may impact on the stability of numerous sandstone boulders (up to 5 metres in size). 3. The proposed development does not allow for sufficient usable private open space. Particulars (i) the proposed Lot 1 is situated on a steep slope/gradient with little, if any flat ground. (ii) there is no adequate private open space located behind the front building line. 4. The proposed development will result in an unacceptable in impact on existing amenity of the neighbourhood. Particulars (i) loss of privacy to neighbouring properties five, seven and 13 Tanglewood Place and the proposed Lot two to 1110 Lord Place. 5. The proposed development does not allow for an easement drain water over the downstream property so as to adequately drain the proposed development site. Particulars (i) The downstream property-Lot 3415, DP 793540. (ii) Minimum easement to drain on-1.5 metres wide. (iii) The applicant has failed to demonstrate how stormwater and runoff is to be disposed. (iv) The applicant has failed to demonstrate the provision of on-site detention for stormwater. (v) The proposed development is not in the public interest. Particulars 6. Letter of objection-5 Tanglewood Pl.